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S.M. v. Lincoln County

United States District Court, E.D. Missouri, Eastern Division

November 1, 2016

S.M., et al., Plaintiffs,



         Plaintiffs S.M., K.W., K.S., and L.M. filed a motion for award of attorneys' fees and non-taxable costs [ECF No. 203] pursuant to 42 U.S.C. § 1988 following a jury verdict in their favor in their 42 U.S.C. § 1983 lawsuit.[1], [2] Defendant Lincoln County, Missouri responded with a memorandum in opposition to the motion [ECF No. 208]. The court held a hearing on the motion at which attorneys for the parties presented argument.

         I. Background

         Plaintiffs filed an action under Section 1983 seeking damages, attorneys' fees, and costs from: (1) Scott Edwards, a Lincoln County Sheriff's Department deputy and a tracker for the drug court in Lincoln County; (2) Michael Krigbaum, the Lincoln County Sheriff; (3) Heather Graham-Thompson, the administrator of Lincoln County's drug court; and (4) Lincoln County (collectively "Defendants"). Plaintiffs contended that Defendants violated their Fourteenth Amendment right to bodily integrity. More specifically, Plaintiffs alleged that Edwards engaged in egregious sexual contact with them while they were participants in Lincoln County's drug court.[3] Plaintiffs further asserted that Krigbaum, Graham-Thompson, and Lincoln County were liable because they failed adequately to hire, train, and supervise Edwards.[4]

         In 2014, Krigbaum and Lincoln County filed a joint motion for summary judgment against Plaintiffs.[5] With respect to Plaintiffs' claims against Krigbaum, Krigbaum and Lincoln County argued that Krigbaum was entitled to qualified immunity because Plaintiffs "failed to properly plead and prove that . . . Krigbaum had notice, possessed deliberate indifference, failed to take remedial action, or . . . in any way caused . . . Edwards to commit unlawful acts or caused Plaintiffs to be deprived of their constitutional rights."[6]

         The court denied Krigbaum's and Lincoln County's motion.[7] The court found there was "a genuine issue of material fact about Lincoln County's and Krigbaum's ability and duty to supervise Edwards [and] . . . about Krigbaum's involvement with Drug Court and its policies."[8] In rejecting Krigbaum's contention that he was immune from suit, the court concluded "there [was] no evidence of whether Krigbaum received notice of a pattern of unconstitutional acts" and "there [was] a genuine issue whether any lack of notice [was] attributable to Krigbaum turning a blind eye to portentous indications such as Edwards taking drug court participants out of the jail to smoke cigarettes."[9]

         Krigbaum (but not Lincoln County) filed an interlocutory appeal to the United States Court of Appeals for the Eighth Circuit.[10] In his appeal, Krigbaum contended that the court erred when it denied him qualified immunity from Plaintiffs' Section 1983 claims alleging he was liable for violating Plaintiffs' constitutional rights based on supervisory liability and inadequate policies.[11] The Eighth Circuit reversed, holding that Krigbaum was entitled to qualified immunity because Plaintiffs "did not meet their burden to prove Krigbaum received notice of a pattern of [Edwards'] unconstitutional acts."[12] The Court further concluded that Plaintiffs "presented no evidence that Krigbaum had knowledge of sexual misconduct by Edwards that would create an inference Krigbaum . . . consciously disregarded a substantial risk of the constitutional harm Edwards was causing."[13]

         In reaching its decision, the Eighth Circuit distinguished between the subjective standard of deliberate indifference applicable to a failure-to-supervise claim against an official sued in an individual capacity and the objective standard of deliberate indifference applicable to a failure- to-supervise claim against a municipality.[14] In relevant part, at footnote 3, the Eighth Circuit stated:

[t]he Supreme Court applied an objective standard of deliberate indifference to a failure-to-supervise claim against a municipality in Canton v. Harris, 489 U.S. 378, 390 (1989). We noted this distinction in Walton[ v. Dawson, 752 F.3d 1109, ] 1117-18 [(8th Cir. 2014)], and the Supreme Court carefully explained it in Farmer[ v. Brennan], 511 U.S. [825, ] 840-42 [(1994)].[15]

(footnote added.)

         Subsequent to the Eighth Circuit's decision, Lincoln County asked this court to reconsider the denial of its motion for summary judgment.[16] The court denied Lincoln County's motion for reconsideration.[17] However, the court permitted Lincoln County to file a second motion for summary judgment to address the "current procedural and substantive posture of the case."[18]The court denied Lincoln County's second motion for summary judgment.[19]

         The court conducted a three-day jury trial of Plaintiffs' remaining Section 1983 failure-to-supervise claim against Lincoln County. During trial, Plaintiffs presented the deposition testimony of Edwards, as well as the testimony of Krigbaum, Graham-Thompson, and Plaintiffs, among others. Plaintiffs also introduced various exhibits and an audio-recording of an incident of Edwards' sexual misconduct toward S.M.[20] Upon conclusion of the trial, the jury awarded S.M. $750, 000.00 and the other three Plaintiffs $500, 000.00 each, for a total award of $2, 250, 000.[21] The court entered judgment in accordance with the verdict.[22] Thereafter, Lincoln County filed a motion for judgment as a matter of law, pursuant to Rule 50(b), and an alternative motion for new trial under Rule 59(b).[23] The court denied Lincoln County's post-trial motions.[24]Plaintiffs filed a bill of taxable costs and the court taxed costs in Plaintiffs' favor.[25]

         A. Plaintiffs' motion for attorneys' fees and non-taxable costs.

         Plaintiffs request an award of $371, 885.00 in attorneys' fees, as follows: (1) $232, 830.00 for W. Bevis Schock for 517.4 hours at a rate of $450.00 per hour; (2) $101, 255.00 for Hugh A. Eastwood for 288.9 hours[26] at a rate of $350.00 per hour; and (3) $37, 800.00 for Michael J. Fagras for 100.8 hours at a rate of $375.00 per hour.[27] Plaintiffs also seek an award of $1, 721.85[28] in non-taxable costs for the costs of delivering materials to the court and a law firm ($26.69) and two attorneys traveling to attend the deposition of Edwards in Virginia ($1, 695.16).

         Plaintiffs argue they are prevailing parties entitled to a fully compensatory attorney's fee due to the substantial jury verdict in their favor on their "significant claim" against Lincoln County. Plaintiffs further assert the court should award them the total amount requested because their requested award is reasonable under the circumstances of this case.[29]

         With respect to the hourly rates, Plaintiffs contend the affidavits they submitted in support of their motion demonstrate their requested hourly rates are consistent with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Plaintiffs also urge the court to apply current hourly rates to all hours they expended on this approximately four-year-old case, rather than "historic hourly rates." With respect to the hours requested, Plaintiffs assert they documented their hours contemporaneously with the service rendered, and all the time expended was reasonable and necessary to the prosecution of this lawsuit.

         Plaintiffs acknowledge "[i]t is a fair question whether Plaintiffs should be compensated for the time spent on the [interlocutory] appeal which . . . Krigbaum admittedly won." However, Plaintiffs contend the court should not eliminate from the award any hours Plaintiffs' counsel spent on the appeal because the unsuccessful claim against Krigbaum and successful claim against Lincoln County share a common core of facts and are so intertwined that it is difficult to separate work on the unsuccessful claim from the successful claim. Plaintiffs note they do not seek: (1) an enhanced fee; (2) compensation for time spent on C.A.'s dismissed claims; or (3) compensation for time their attorneys spent on any separate litigation to resolve issues regarding insurance coverage for Edwards and Graham-Thompson.

         In its memorandum in opposition, Lincoln County responds that the total fees awarded should be less than the fee amount requested due to duplicative and excessive hours. Lincoln County also contends Plaintiffs are not entitled to any compensation for work on Krigbaum's interlocutory appeal.

         B. Hearing

         At the hearing on Plaintiffs' motion, Lincoln County stated that it did not dispute the hourly rates requested, the hours worked, or that Plaintiffs were prevailing parties. In addition, Lincoln County did not object to either the amount of non-taxable costs or that Plaintiffs were entitled to non-taxable costs. Lincoln County further advised the court that it challenged the fee award solely insofar as it included hours related to the interlocutory appeal. Lincoln County sought a deduction of the entire amount attributable to the interlocutory appeal. More specifically, Lincoln County asked the court to eliminate 118 hours, consisting of 70 hours for Mr. Schock, 35 hours for Mr. Eastwood and 13 hours for Mr. Fagras.

         Citing Jaffee v. Redmond, 142 F.3d 409 (7th Cir. 1998), Plaintiffs argued at the hearing that their attorneys should be awarded fees for hours spent on the interlocutory appeal. Plaintiffs also argued that: (1) the Eighth Circuit's decision in the interlocutory appeal, particularly footnote 3 of that opinion, contributed to the subsequent progress of this lawsuit; and (2) Krigbaum was the "center" or "heart" of the case and his testimony and conduct were important to the success of Plaintiffs' claim against Lincoln County.[30] Plaintiffs also relied on Jenkins ex rel. Jenkins v. Missouri, 127 F.3d 709 (8th Cir. 1997) ("Jenkins") and Casey v. City of Cabool, Mo., 12 F.3d 799 (8th Cir. 1993), to support an award of fees for the interlocutory appeal.

         After the hearing, Plaintiffs filed a joint statement advising that $29, 810.00 of their fee request was for services their attorneys rendered on the interlocutory appeal. Lincoln County did not challenge the amount Plaintiffs attributed to their attorneys' work on the interlocutory appeal.

         II. Discussion

         A. Standard for awarding fees under Section 1988

         A court has discretion to award reasonable attorneys' fees to a party who prevails in a claim filed under 42 U.S.C. § 1983. 42 U.S.C. § 1988(b). Importantly, a trial court's "discretion to deny attorneys' fees to a prevailing plaintiff is narrow." Jenkins, 127 F.3d at 716.

         The Eighth Circuit reviews legal issues relating to fee awards de novo and factual determinations for abuse of discretion. See Cody v. Hillard, 304 F.3d 767, 772 (8th Cir. 2002). The party seeking the award must submit evidence supporting the requested hours and rates, making "a good faith effort" to exclude hours that are "excessive, redundant, or otherwise unnecessary." Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). The fee applicant must also use "billing judgment" to exclude hours that would not properly be billed to a client, because time not properly billed to a client should not be paid by an adversary pursuant to statutory authority. Id. at 434.

         To determine reasonable attorneys' fees under Section 1988, "the most useful starting point is . . . the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. at 433. This calculation is referred to as the "lodestar approach." See, e.g., Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010). There is a strong presumption that the lodestar calculation represents a reasonable fee award. City of Burlington v. Dague, 505 U.S. 557, 562 (1992).

         When a plaintiff has only limited success, the extent of that success "is a crucial factor in determining the proper amount of an award of attorneys' fees under 42 U.S.C. § 1988." Hensley, 461 U.S. at 440. The court must consider whether a plaintiff's unsuccessful claims "were unrelated to the claims on which [the plaintiff] succeeded" and whether "the level of success" achieved by the plaintiff "makes the hours reasonably expended a satisfactory basis for making a fee award." Id. at 434. When a plaintiff's claims "involve a common core of facts or [are] based on related legal theories[, m]uch of counsel's time will be devoted generally to the litigation as a whole." Id. at 435. In that situation, "the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id.

         "Where a plaintiff has obtained excellent results, [the plaintiff's] attorney should recover a fully compensatory fee, [which will n]ormally . . . encompass all hours reasonably expended on the litigation." Id. Significantly, the Eighth Circuit has explained this as meaning that a "plaintiff who has won excellent results . . . is entitled to a fully compensatory fee award, which will normally include time spent on related matters on which [the plaintiff] did not win." Jenkins, 127 F.3d at 716 (emphasis added).

         If, however, "a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount." Hensle ...

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